Obama’s Recess Appointments Struck Down

Elizabeth Slattery /
January 25, 2013

On Friday morning, a three-judge panel of the D.C. Circuit Court of Appeals unanimously struck down President Obama’s alleged “recess” appointments to the National Labor Relations Board (NLRB). The appointments were made over a year ago, so the ruling potentially invalidates a number of actions taken by the NLRB since then. The five-member NLRB cannot act on issues absent a quorum. And the participation of illegally appointed members does not a quorum make.

Art. II, sec. 2, cl. 2 of the Constitution provides that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” As Todd Gaziano and I discussed in this Daily Caller piece, the court held that the President’s power to make recess appointments is limited to intersession recesses that occur between the two to three sessions per Congress, not similar recesses in the middle of a session of the Senate, referred to as intra-session recesses. We explained:

The court noted that the Constitution’s appointments scheme demonstrates that the recess appointment power “served as a stopgap for times when the Senate was unable to provide advice and consent.” The Framers of our Constitution likely did not imagine a day when senators could communicate their consent to bills by electronic means or fly to Washington in a few hours. As a result, they provided a mechanism for the president to make appointments during necessarily long recesses. President Obama is not the first to use or arguably abuse this power. But for nearly a century, the general consensus of all branches of government was that [any long Senate recess was acceptable] during which a president could make recess appointments. According to the court’s ruling, no intra-session recess will do.

We also pointed out that the court went beyond deciding when “the Recess” occurs, and that two of the three judges on the panel ruled that the President may make recess appointments only for vacancies that arise during an intersession recess. Thus, the president cannot circumvent the Senate’s role of advice and consent by simply storing up nominations until the Senate is in a long intersession recess.

[The president] is worse off than he was when he started, because the court’s ruling invalidates all appointments made during recesses that occur in the middle of a Senate session. Under the ruling, appointments will be possible only in the recesses between sessions of the Senate, which are unlikely to occur, at least until the end of this year, without unusual Senate action.

Gaziano predicts that if petitioned, the Supreme Court will take the case and it “may narrow the grounds for striking down the illegal appointments. But I don’t think a Supreme Court majority will see any pressing need to contort the Constitution to uphold these unilateral actions.”